Motion for Leave to File Second Petition for Rehearing Denied Aug. 30, 1989.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231, 2973, 49 L. Ed.2d 859 (1976) (MARSHALL, J., dissenting), I would grant the petition for writ of certiorari and vacate the death sentence in this case. Even if I did not hold this view, I would grant the petition to consider whether a jury instruction that sympathy should not influence a decision regarding the imposition of the death penalty violates the Eighth and Fourteenth Amendments. [ Britz v. Illinois 489 U.S. 1044 (1989) ][1044-Continued.]

denied, 471 U.S. 1120 (1985), the court further held that the instruction did not deny petitioner a fair trial because the jury was also instructed that it could consider any other facts or circumstances that favored imposition of a sentence other than death, and because the defendant was permitted to introduce all evidence he considered mitigating, including evidence ruled inadmissible during the guilt phase.

II

We have recognized repeatedly that, in a capital case, the sentencer must not be precluded from considering any mitigating evidence relating to the defendant or the crime. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 111-112, 874-875 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 2964 (1978) (plurality opinion). Mitigating evidence is allowed at the penalty phase so the sentencer may consider "compassionate . . . factors stemming from the diverse frailties of humankind." Woodson v. North Carolina, 428 U.S. 280, 304, 2991 (1976) (plurality opinion). " Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution." Gregg v. Georgia, supra, 428 U.S. at 199, 96 S.Ct. at 2937 (joint opinion of Stewart, Powell, and STEVENS, JJ.); see also Caldwell v. Mississippi, 472 U.S. 320, 330- 331, 2640-2641 (1985).

The Court reaffirmed the importance of considering mitigating evidence in California v. Brown, supra. There, the trial judge instructed the jury that it must not be swayed by " 'mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.' " 479 U.S., at 542. The majority held that this instruction did not violate the Eighth and Fourteenth Amendments for two reasons. First, it found that the word "mere" informed the jury "to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase." Ibid. (emphasis added). "By concentrating on the noun 'sympathy,' " the defendant had "ignore[d] the crucial fact that the jury was instructed to avoid basing its decision on mere sympathy." Ibid. (emphasis in original). Second, the majority deemed it "highly unlikely that any reasonable juror would almost perversely single out the word 'sympathy' from the other nouns which accompany it in the instruction : conjecture, passion, prejudice, public opinion, or public feeling." Id., at 542-543. "Reading the instruction as a whole," id., at 543, a rational juror could only conclude that the instruction was intended simply to confine- [489 U.S. 1044 , 1046]

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